# 62018TO0660

ORDER OF THE GENERAL COURT (First Chamber)

9 July 2019 (
  *1
  )

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(Action for annulment — Electronic communications — Article 7 of Directive 2002/21/EC — Wholesale provision of fixed access — Joint significant market power — Specific regulatory obligations imposed on operators — Draft measure made accessible by the national regulatory authority — Comments of the Commission — Second phase of the procedure not opened — Act not open to challenge — Article 130 of the Rules of Procedure — Inadmissibility)

In Case T‐660/18,

VodafoneZiggo Group BV, established in Utrecht (Netherlands), represented by W. Knibbeler and A. Pliego Selie, lawyers,

VodafoneZiggo Group BV

applicant,

v

European Commission, represented by G. Braun and L. Nicolae, acting as Agents,

European Commission

defendant,

Action pursuant to Article 263 TFEU seeking the annulment of the decision allegedly contained in the letter of 30 August 2018 sent by the Commission to the Autoriteit Consument en Markt (Consumers and Markets Authority, Netherlands), the Dutch regulatory authority, containing its comments made pursuant to Article 7(3) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), on a draft measure made accessible by that authority (Cases NL/2018/2099 and NL/2018/2100),

THE GENERAL COURT (First Chamber),

composed of I. Pelikánová, President, P. Nihoul and J. Svenningsen (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

Order

Background to the dispute

Background to the dispute

| 1 | The applicant, VodafoneZiggo Group BV, is a company incorporated under Dutch law which operates in the electronic communications sector, providing fixed internet, television and telephony services by cable network. As such, its activities are covered by the EU legislation applicable to that sector, in particular Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) (‘the Framework Directive’), as last amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37). |
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1

The applicant, VodafoneZiggo Group BV, is a company incorporated under Dutch law which operates in the electronic communications sector, providing fixed internet, television and telephony services by cable network. As such, its activities are covered by the EU legislation applicable to that sector, in particular Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) (‘the Framework Directive’), as last amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37).

The consultation procedures established by the Framework Directive

The consultation procedures established by the Framework Directive

| 2 | The first sentence of Article 1(1) of the Framework Directive provides that that directive is intended to create a harmonised framework for the regulation of electronic communications services, electronic communications networks, associated facilities and services and certain aspects of terminal equipment to facilitate access by disabled users. On that basis, the Framework Directive lays down the tasks assigned to the national regulatory authorities (‘NRAs’), namely the body or bodies designated, by each Member State, to carry out one or more of those tasks. These include, inter alia, as provided for in Article 16 of that directive, carrying out analyses of the relevant markets, which may lead to the imposition by NRAs of specific regulatory obligations, also referred to as ‘remedies’, on operators with significant power in one of the markets covered by the Framework Directive. |
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2

The first sentence of Article 1(1) of the Framework Directive provides that that directive is intended to create a harmonised framework for the regulation of electronic communications services, electronic communications networks, associated facilities and services and certain aspects of terminal equipment to facilitate access by disabled users. On that basis, the Framework Directive lays down the tasks assigned to the national regulatory authorities (‘NRAs’), namely the body or bodies designated, by each Member State, to carry out one or more of those tasks. These include, inter alia, as provided for in Article 16 of that directive, carrying out analyses of the relevant markets, which may lead to the imposition by NRAs of specific regulatory obligations, also referred to as ‘remedies’, on operators with significant power in one of the markets covered by the Framework Directive.

| 3 | In that regard, as is apparent, in essence, from recital 15 of the Framework Directive, that directive provides that, where NRAs intend to take measures in the performance of their tasks, including remedies, they must, in certain cases, carry out, on the one hand, in accordance with Article 6 thereof, a public consultation at national level, giving interested parties an opportunity to comment on the draft measure, and, on the other hand, pursuant to Article 7(3) thereof, a consultation at EU level, involving both the European Commission and the NRAs of the other Member States and the Body of European Regulators for Electronic Communications (BEREC) (‘the European consultation procedure’). |
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3

In that regard, as is apparent, in essence, from recital 15 of the Framework Directive, that directive provides that, where NRAs intend to take measures in the performance of their tasks, including remedies, they must, in certain cases, carry out, on the one hand, in accordance with Article 6 thereof, a public consultation at national level, giving interested parties an opportunity to comment on the draft measure, and, on the other hand, pursuant to Article 7(3) thereof, a consultation at EU level, involving both the European Commission and the NRAs of the other Member States and the Body of European Regulators for Electronic Communications (BEREC) (‘the European consultation procedure’).

| 4 | The European consultation procedure aims to enable coordination between the NRA at the origin of the draft measure, other NRAs, the Commission and BEREC so as to ensure the consistent application of the Framework Directive. In accordance with Article 7(3) of that directive, an NRA intending to take a measure must make the draft measure accessible to those other institutional bodies, together with the grounds on which the measure or measures are based, so that they can make their comments within a 1-month period which cannot be extended (‘the first phase of the European consultation procedure’). In accordance with Article 7(7) of the Framework Directive, the NRA must then take ‘the utmost account’ of those comments. |
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4

The European consultation procedure aims to enable coordination between the NRA at the origin of the draft measure, other NRAs, the Commission and BEREC so as to ensure the consistent application of the Framework Directive. In accordance with Article 7(3) of that directive, an NRA intending to take a measure must make the draft measure accessible to those other institutional bodies, together with the grounds on which the measure or measures are based, so that they can make their comments within a 1-month period which cannot be extended (‘the first phase of the European consultation procedure’). In accordance with Article 7(7) of the Framework Directive, the NRA must then take ‘the utmost account’ of those comments.

| 5 | In certain cases defined in the Framework Directive, the Commission may, however, issue reservations and decide to extend the examination of a draft measure made accessible by an NRA by opening a new period within the framework of a new phase of the European consultation procedure (‘the second phase of the European consultation procedure’). |
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5

In certain cases defined in the Framework Directive, the Commission may, however, issue reservations and decide to extend the examination of a draft measure made accessible by an NRA by opening a new period within the framework of a new phase of the European consultation procedure (‘the second phase of the European consultation procedure’).

| 6 | That is the case, first, under Article 7(4) of the Framework Directive (‘the second phase of Article 7’), where the intended measure or measures aim to define a relevant market which differs from those identified by the Commission or to decide whether or not to designate an undertaking as having, either individually or jointly with others, significant market power (‘SMP’), and where that measure or those measures would affect trade between Member States. In such cases, if the Commission indicated to the NRA that it considered that the draft measure would create a barrier to the single market or if it had serious doubts as to its compatibility with EU legislation and, in particular, with the objectives referred to in Article 8 of the Framework Directive, the adoption of the draft measure will not be adopted for a further 2 months, the period of which cannot be extended. In addition, the Commission must inform the other NRAs of its reservations. On completion of that 2-month period, the Commission may, under Article 7(5) of the Framework Directive, require the NRA concerned to withdraw its draft measure (‘the veto right’), or lift its reservations concerning the draft measure. |
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6

That is the case, first, under Article 7(4) of the Framework Directive (‘the second phase of Article 7’), where the intended measure or measures aim to define a relevant market which differs from those identified by the Commission or to decide whether or not to designate an undertaking as having, either individually or jointly with others, significant market power (‘SMP’), and where that measure or those measures would affect trade between Member States. In such cases, if the Commission indicated to the NRA that it considered that the draft measure would create a barrier to the single market or if it had serious doubts as to its compatibility with EU legislation and, in particular, with the objectives referred to in Article 8 of the Framework Directive, the adoption of the draft measure will not be adopted for a further 2 months, the period of which cannot be extended. In addition, the Commission must inform the other NRAs of its reservations. On completion of that 2-month period, the Commission may, under Article 7(5) of the Framework Directive, require the NRA concerned to withdraw its draft measure (‘the veto right’), or lift its reservations concerning the draft measure.

| 7 | Second, in accordance with Article 7a(1) of the Framework Directive (‘the second phase of Article 7a’), the Commission may decide to open the second phase of the European consultation procedure where the intended measure or measures aim at imposing, amending or withdrawing a specific regulatory obligation, that is to say a ‘remedy’, on an operator in accordance with certain provisions of the Framework Directive, of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7) and of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51). In such a case, the Commission may notify the NRA concerned and BEREC of its reasons for considering that the draft measure would create a barrier to the single market or its serious doubts as to its compatibility with EU law. In that case, in accordance with Article 7a(1) and (5) of the Framework Directive, the draft measure cannot be adopted before the expiry of a further 4-month period following the Commission’s notification. At the end of that period, the Commission may, pursuant to Article 7a(5) of the Framework Directive, either issue a recommendation requesting the NRA concerned to amend or withdraw the draft measure, or lift its reservations concerning that draft measure. |
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7

Second, in accordance with Article 7a(1) of the Framework Directive (‘the second phase of Article 7a’), the Commission may decide to open the second phase of the European consultation procedure where the intended measure or measures aim at imposing, amending or withdrawing a specific regulatory obligation, that is to say a ‘remedy’, on an operator in accordance with certain provisions of the Framework Directive, of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7) and of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51). In such a case, the Commission may notify the NRA concerned and BEREC of its reasons for considering that the draft measure would create a barrier to the single market or its serious doubts as to its compatibility with EU law. In that case, in accordance with Article 7a(1) and (5) of the Framework Directive, the draft measure cannot be adopted before the expiry of a further 4-month period following the Commission’s notification. At the end of that period, the Commission may, pursuant to Article 7a(5) of the Framework Directive, either issue a recommendation requesting the NRA concerned to amend or withdraw the draft measure, or lift its reservations concerning that draft measure.

| 8 | Thus, where the Commission has reservations about various aspects of the draft measure made accessible to it, it may open both the second phase of Article 7 and the second phase of Article 7a. |
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8

Thus, where the Commission has reservations about various aspects of the draft measure made accessible to it, it may open both the second phase of Article 7 and the second phase of Article 7a.

| 9 | Lastly, as regards the measures adopted by the NRAs in implementing the Framework Directive, Article 4 thereof provides for a national right of appeal against such decisions. |
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9

Lastly, as regards the measures adopted by the NRAs in implementing the Framework Directive, Article 4 thereof provides for a national right of appeal against such decisions.

The procedure giving rise to the contested measure

The procedure giving rise to the contested measure

| 10 | On 27 February 2018, the Autoriteit Consument en Markt (Authority for Consumers and Markets, Netherlands) (‘the ACM’), the Dutch NRA, in accordance with Article 6 of the Framework Directive, published a draft measure for the purposes of public consultation. |
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10

On 27 February 2018, the Autoriteit Consument en Markt (Authority for Consumers and Markets, Netherlands) (‘the ACM’), the Dutch NRA, in accordance with Article 6 of the Framework Directive, published a draft measure for the purposes of public consultation.

| 11 | The draft measure concerned in particular the market for wholesale supply at a fixed location. In that letter, the ACM considered that some operators, including the applicant, enjoyed significant joint market power in that market and proposed to impose specific regulatory obligations on those operators in accordance with Article 16 of the Framework Directive. |
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11

The draft measure concerned in particular the market for wholesale supply at a fixed location. In that letter, the ACM considered that some operators, including the applicant, enjoyed significant joint market power in that market and proposed to impose specific regulatory obligations on those operators in accordance with Article 16 of the Framework Directive.

| 12 | Interested parties were invited to submit their observations on the draft measure by 10 April 2018. The applicant submitted observations within the prescribed period. |
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12

Interested parties were invited to submit their observations on the draft measure by 10 April 2018. The applicant submitted observations within the prescribed period.

| 13 | On 31 July 2018, the ACM made the draft measure accessible to the Commission, BEREC and the NRAs of the other Member States in accordance with Article 7(3) of the Framework Directive. The draft measure thus transmitted was registered by the Commission under the references ‘NL/2018/2099’ and ‘NL/2018/2100’. |
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13

On 31 July 2018, the ACM made the draft measure accessible to the Commission, BEREC and the NRAs of the other Member States in accordance with Article 7(3) of the Framework Directive. The draft measure thus transmitted was registered by the Commission under the references ‘NL/2018/2099’ and ‘NL/2018/2100’.

| 14 | After the draft measure was transmitted, on the basis of Article 5(2) of the Framework Directive, the Commission requested further information from the ACM on 6 August 2018 to which the ACM replied on 9 August 2018. On the same day, the Commission sent a request for further information to which the ACM replied. |
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14

After the draft measure was transmitted, on the basis of Article 5(2) of the Framework Directive, the Commission requested further information from the ACM on 6 August 2018 to which the ACM replied on 9 August 2018. On the same day, the Commission sent a request for further information to which the ACM replied.

| 15 | On 8 August 2018, the applicant submitted observations to the Commission concerning the draft measure. |
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15

On 8 August 2018, the applicant submitted observations to the Commission concerning the draft measure.

| 16 | On 30 August 2018, the Commission, pursuant to Article 7(3) of the Framework Directive, sent the ACM a letter containing its comments (‘the contested measure’) on the draft measure and did not consider it necessary to open the second phase of the European consultation procedure. Those comments were published on the Commission’s website on 31 August 2018. |
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16

On 30 August 2018, the Commission, pursuant to Article 7(3) of the Framework Directive, sent the ACM a letter containing its comments (‘the contested measure’) on the draft measure and did not consider it necessary to open the second phase of the European consultation procedure. Those comments were published on the Commission’s website on 31 August 2018.

| 17 | On 27 September 2018, the ACM adopted its decision, which identifies certain operators, including the applicant, as enjoying significant joint market power in the market for wholesale supply at a fixed location and imposes on them specific regulatory obligations. In Annex I to that decision, the ACM explains how it took account of the Commission’s comments. |
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17

On 27 September 2018, the ACM adopted its decision, which identifies certain operators, including the applicant, as enjoying significant joint market power in the market for wholesale supply at a fixed location and imposes on them specific regulatory obligations. In Annex I to that decision, the ACM explains how it took account of the Commission’s comments.

| 18 | Following that decision, the applicant, as provided in Article 4 of the Framework Directive, brought an action before the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry, Netherlands) against the decision of the ACM. |
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18

Following that decision, the applicant, as provided in Article 4 of the Framework Directive, brought an action before the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry, Netherlands) against the decision of the ACM.

Procedure and forms of order sought

Procedure and forms of order sought

| 19 | The applicant brought the present action by application lodged at the Registry of the General Court on 8 November 2018. The applicant claims that the Court should:





  – | annul the contested measure; |
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19

The applicant brought the present action by application lodged at the Registry of the General Court on 8 November 2018. The applicant claims that the Court should:

–

annul the contested measure;

| – | order the Commission to pay the costs. |
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–

order the Commission to pay the costs.

| 20 | By a separate document lodged at the Registry of the General Court on 23 January 2019, the Commission raised an objection of inadmissibility under Article 130 of the Rules of Procedure of the Court. By its plea, the Commission contends that the Court should:





  – | dismiss the action as manifestly inadmissible; |
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20

By a separate document lodged at the Registry of the General Court on 23 January 2019, the Commission raised an objection of inadmissibility under Article 130 of the Rules of Procedure of the Court. By its plea, the Commission contends that the Court should:

–

dismiss the action as manifestly inadmissible;

| – | order the applicant to pay the costs. |
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–

order the applicant to pay the costs.

| 21 | The Kingdom of the Netherlands, on the one hand, and T-Mobile Netherlands Holding BV, T-Mobile Netherlands BV, T-Mobile Thuis BV and Tele2 Nederland BV on the other, applied for leave to intervene in support of the form of order sought by the Commission by documents lodged at the Registry of the Court on 1 February 2019 and on 27 February 2019 respectively. |
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21

The Kingdom of the Netherlands, on the one hand, and T-Mobile Netherlands Holding BV, T-Mobile Netherlands BV, T-Mobile Thuis BV and Tele2 Nederland BV on the other, applied for leave to intervene in support of the form of order sought by the Commission by documents lodged at the Registry of the Court on 1 February 2019 and on 27 February 2019 respectively.

| 22 | On 15 March 2019, the applicant submitted its observations on the objection of inadmissibility, in which it claims that the Court should:





  – | dismiss that plea and declare the action admissible; |
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22

On 15 March 2019, the applicant submitted its observations on the objection of inadmissibility, in which it claims that the Court should:

–

dismiss that plea and declare the action admissible;

| – | annul the contested measure; |
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–

annul the contested measure;

| – | order the Commission to bear its own costs and to pay the interveners’ costs. |
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–

order the Commission to bear its own costs and to pay the interveners’ costs.

Law

Law

| 23 | Pursuant to Article 130 of the Rules of Procedure, where, by separate document, the defendant applies to the Court for a decision on inadmissibility or lack of competence without going to the substance of the case, the Court must decide on the application as soon as possible, where necessary after opening the oral part of the procedure. |
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23

Pursuant to Article 130 of the Rules of Procedure, where, by separate document, the defendant applies to the Court for a decision on inadmissibility or lack of competence without going to the substance of the case, the Court must decide on the application as soon as possible, where necessary after opening the oral part of the procedure.

| 24 | In the present case, the Court considers that it has sufficient information from the documents in the file and has decided to give a decision on the action by reasoned order without taking further steps in the proceedings. |
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24

In the present case, the Court considers that it has sufficient information from the documents in the file and has decided to give a decision on the action by reasoned order without taking further steps in the proceedings.

| 25 | In support of its objection of inadmissibility, the Commission raises, in essence, two grounds of inadmissibility, which it is appropriate to examine in turn. In the first place, it contends that the contested measure is not an act or decision which may be the subject of an action within the meaning of Article 263 TFEU since it does not produce binding legal effects. At most, it could constitute a preparatory act not adopting a definitive position on the part of that institution. In the second place, the Commission maintains that the applicant does not have standing to bring proceedings within the meaning of the fourth paragraph of Article 263 TFEU, since it is not directly concerned by the contested measure. |
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25

In support of its objection of inadmissibility, the Commission raises, in essence, two grounds of inadmissibility, which it is appropriate to examine in turn. In the first place, it contends that the contested measure is not an act or decision which may be the subject of an action within the meaning of Article 263 TFEU since it does not produce binding legal effects. At most, it could constitute a preparatory act not adopting a definitive position on the part of that institution. In the second place, the Commission maintains that the applicant does not have standing to bring proceedings within the meaning of the fourth paragraph of Article 263 TFEU, since it is not directly concerned by the contested measure.

| 26 | As to whether the contested measure may be challenged, the Commission considers that the grounds of inadmissibility, as set out by the Court in the orders of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384), and of 22 February 2008, Base v Commission (T‐295/06, not published, EU:T:2008:48), are applicable to the present case. |
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26

As to whether the contested measure may be challenged, the Commission considers that the grounds of inadmissibility, as set out by the Court in the orders of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384), and of 22 February 2008, Base v Commission (T‐295/06, not published, EU:T:2008:48), are applicable to the present case.

| 27 | The applicant, who considers that the Commission should have opened the second phase of the European consultation procedure, claims that the contested measure produces binding legal effects such that the Court has jurisdiction to rule on its lawfulness under Article 263 TFEU. The applicant submits that its legal situation is affected, since, in its view, the comments made under Article 7(3) of the Framework Directive are binding on the NRA concerned, such comments constitute authorisation enabling the NRA concerned to adopt the examined draft measure and the transmission of such comments affects the applicant’s procedural rights where the Commission refrains from opening the second phase of the European consultation procedure. It contends that the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384), to which the Commission refers, is not relevant on account of factual and legal circumstances distinguishing the case which gave rise to that order from the present case. Moreover, according to the applicant, the contested measure is not a preparatory act since it reflects the Commission’s definitive position by bringing the European consultation procedure to an end. |
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27

The applicant, who considers that the Commission should have opened the second phase of the European consultation procedure, claims that the contested measure produces binding legal effects such that the Court has jurisdiction to rule on its lawfulness under Article 263 TFEU. The applicant submits that its legal situation is affected, since, in its view, the comments made under Article 7(3) of the Framework Directive are binding on the NRA concerned, such comments constitute authorisation enabling the NRA concerned to adopt the examined draft measure and the transmission of such comments affects the applicant’s procedural rights where the Commission refrains from opening the second phase of the European consultation procedure. It contends that the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384), to which the Commission refers, is not relevant on account of factual and legal circumstances distinguishing the case which gave rise to that order from the present case. Moreover, according to the applicant, the contested measure is not a preparatory act since it reflects the Commission’s definitive position by bringing the European consultation procedure to an end.

| 28 | In that regard, according to settled case-law, all measures adopted by the EU institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position are regarded as acts open to challenge for the purposes of Article 263 TFEU (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 17 July 2008, Athinaïki Techniki v Commission, C‐521/06 P, EU:C:2008:422, paragraph 29; and of 20 September 2016, Mallis and Others v Commission and ECB, C‐105/15 P to C‐109/15 P, EU:C:2016:702, paragraph 51). |
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28

In that regard, according to settled case-law, all measures adopted by the EU institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position are regarded as acts open to challenge for the purposes of Article 263 TFEU (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 17 July 2008, Athinaïki Techniki v Commission, C‐521/06 P, EU:C:2008:422, paragraph 29; and of 20 September 2016, Mallis and Others v Commission and ECB, C‐105/15 P to C‐109/15 P, EU:C:2016:702, paragraph 51).

| 29 | In order to determine whether a measure contested before the EU Courts pursuant to Article 263 TFEU produces binding legal effects, it is necessary to examine the substance of that measure and to assess those effects on the basis of objective criteria, such as the content of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure (see, to that effect, judgment of 20 February 2018, Belgium v Commission, C‐16/16 P, EU:C:2018:79, paragraphs 31 and 32 and the case-law cited). |
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29

In order to determine whether a measure contested before the EU Courts pursuant to Article 263 TFEU produces binding legal effects, it is necessary to examine the substance of that measure and to assess those effects on the basis of objective criteria, such as the content of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure (see, to that effect, judgment of 20 February 2018, Belgium v Commission, C‐16/16 P, EU:C:2018:79, paragraphs 31 and 32 and the case-law cited).

| 30 | Also, in the case of measures adopted by a procedure involving several phases, and particularly where they are the culmination of an internal procedure, it is in principle only those measures which definitively determine the position of the relevant institution upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare for the final decision (see, to that effect, judgment of 22 June 2000, Netherlands v Commission, C‐147/96, EU:C:2000:335, paragraph 26 and the case-law cited). |
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30

Also, in the case of measures adopted by a procedure involving several phases, and particularly where they are the culmination of an internal procedure, it is in principle only those measures which definitively determine the position of the relevant institution upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare for the final decision (see, to that effect, judgment of 22 June 2000, Netherlands v Commission, C‐147/96, EU:C:2000:335, paragraph 26 and the case-law cited).

| 31 | Accordingly, it is necessary in the present case to assess, first of all, whether the contested measure is a measure open to challenge having regard to the context in which it was adopted, its content and whether it is preparatory in nature. |
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31

Accordingly, it is necessary in the present case to assess, first of all, whether the contested measure is a measure open to challenge having regard to the context in which it was adopted, its content and whether it is preparatory in nature.

The context in which the contested measure was adopted

The context in which the contested measure was adopted

| 32 | As a preliminary matter, it should be noted that, in the first place, when it assigned tasks to the NRAs and to the Commission, the EU legislature wished to assign a central role to NRAs in order to achieve the objectives referred to in the Framework Directive (see, to that effect, order of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 72 to 75), and granted those NRAs regulatory powers, in particular those to define, on the basis of the principles of competition law, the electronic communications markets in their territory (Article 15(3) of the Framework Directive), to identify operators having, individually or jointly, SMP (Article 14 of the Framework Directive) and to determine the regulatory obligations which must, where appropriate, be imposed on those operators (Article 16(4) of the Framework Directive). |
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32

As a preliminary matter, it should be noted that, in the first place, when it assigned tasks to the NRAs and to the Commission, the EU legislature wished to assign a central role to NRAs in order to achieve the objectives referred to in the Framework Directive (see, to that effect, order of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 72 to 75), and granted those NRAs regulatory powers, in particular those to define, on the basis of the principles of competition law, the electronic communications markets in their territory (Article 15(3) of the Framework Directive), to identify operators having, individually or jointly, SMP (Article 14 of the Framework Directive) and to determine the regulatory obligations which must, where appropriate, be imposed on those operators (Article 16(4) of the Framework Directive).

| 33 | In carrying out their regulatory functions, the NRAs thus have a broad discretion in order to be able to determine the need to regulate a market according to each situation on a case-by-case basis (see, to that effect, judgment of 15 September 2016, Koninklijke KPN and Others, C‐28/15, EU:C:2016:692, paragraph 36 and the case-law cited). |
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33

In carrying out their regulatory functions, the NRAs thus have a broad discretion in order to be able to determine the need to regulate a market according to each situation on a case-by-case basis (see, to that effect, judgment of 15 September 2016, Koninklijke KPN and Others, C‐28/15, EU:C:2016:692, paragraph 36 and the case-law cited).

| 34 | In the second place, the role of the Commission is to assist the NRAs and to seek to ensure the harmonised application of the regulatory framework throughout the European Union. Thus, the Commission publishes recommendations and guidelines, in particular under Article 15 of the Framework Directive, on the relevant product and service markets and on the market analysis and the assessment of market power, in order to ensure a consistent application of the regulatory framework. In addition, on the basis of Article 19(1) of the Framework Directive, ‘the Commission may, taking the utmost account of the opinion of BEREC, issue a recommendation or a decision on the harmonised application of the provisions in [the Framework Directive] and the specific directives in order to further the achievement of the objectives set out in Article 8’ (see, to that effect, order of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraph 75). |
| --- | --- |

34

In the second place, the role of the Commission is to assist the NRAs and to seek to ensure the harmonised application of the regulatory framework throughout the European Union. Thus, the Commission publishes recommendations and guidelines, in particular under Article 15 of the Framework Directive, on the relevant product and service markets and on the market analysis and the assessment of market power, in order to ensure a consistent application of the regulatory framework. In addition, on the basis of Article 19(1) of the Framework Directive, ‘the Commission may, taking the utmost account of the opinion of BEREC, issue a recommendation or a decision on the harmonised application of the provisions in [the Framework Directive] and the specific directives in order to further the achievement of the objectives set out in Article 8’ (see, to that effect, order of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraph 75).

| 35 | In the third place, as regards the European consultation procedure, the wording of Articles 7 and 7a of the Framework Directive shows that the Commission plays more of a coordinating role in that procedure than one of decision-making. |
| --- | --- |

35

In the third place, as regards the European consultation procedure, the wording of Articles 7 and 7a of the Framework Directive shows that the Commission plays more of a coordinating role in that procedure than one of decision-making.

| 36 | First, during the first phase of the European consultation procedure, the Commission may make ‘comments’ on any draft measure made accessible to it by the NRAs, of which the latter must ‘take the utmost account’ under Article 7(3) and (7) of the Framework Directive. |
| --- | --- |

36

First, during the first phase of the European consultation procedure, the Commission may make ‘comments’ on any draft measure made accessible to it by the NRAs, of which the latter must ‘take the utmost account’ under Article 7(3) and (7) of the Framework Directive.

| 37 | Second, during the second phase of Article 7a, although the Commission may, under Article 7a(5)(a) of the Framework Directive, ‘issue a recommendation requiring the [NRA] concerned to amend or withdraw [its] draft measure’, the NRA concerned may nevertheless decide not to amend its draft measure or not to withdraw it, that is to say, to disregard the Commission’s recommendations, provided that it gives a reasoned justification in that regard, as set out in Article 7a(7) of the Framework Directive. |
| --- | --- |

37

Second, during the second phase of Article 7a, although the Commission may, under Article 7a(5)(a) of the Framework Directive, ‘issue a recommendation requiring the [NRA] concerned to amend or withdraw [its] draft measure’, the NRA concerned may nevertheless decide not to amend its draft measure or not to withdraw it, that is to say, to disregard the Commission’s recommendations, provided that it gives a reasoned justification in that regard, as set out in Article 7a(7) of the Framework Directive.

| 38 | Ultimately, it is only in the second phase of Article 7 that an NRA may find itself bound by the Commission’s position, specifically where, under Article 7(5)(a) of the Framework Directive, the Commission decides to exercise its right of veto. |
| --- | --- |

38

Ultimately, it is only in the second phase of Article 7 that an NRA may find itself bound by the Commission’s position, specifically where, under Article 7(5)(a) of the Framework Directive, the Commission decides to exercise its right of veto.

| 39 | It is, in particular, in the light of those considerations regarding the legal framework established by the Framework Directive, attributing a central role to the NRAs, that it is necessary to examine the arguments put forward by the applicant in support of its claim that the contested measure produces binding legal effects, such that that measure is actionable before the EU Courts under Article 263 TFEU. |
| --- | --- |

39

It is, in particular, in the light of those considerations regarding the legal framework established by the Framework Directive, attributing a central role to the NRAs, that it is necessary to examine the arguments put forward by the applicant in support of its claim that the contested measure produces binding legal effects, such that that measure is actionable before the EU Courts under Article 263 TFEU.

The arguments concerning the requirement to take ‘the utmost account’ of the Commission’s comments

The arguments concerning the requirement to take ‘the utmost account’ of the Commission’s comments

| 40 | The applicant submits that the obligation, laid down in Article 7(7) of the Framework Directive, that the NRA concerned must ‘take the utmost account’ of the Commission’s comments requires that the instructions included in those comments be followed. |
| --- | --- |

40

The applicant submits that the obligation, laid down in Article 7(7) of the Framework Directive, that the NRA concerned must ‘take the utmost account’ of the Commission’s comments requires that the instructions included in those comments be followed.

| 41 | In the first place, the applicant relies on the judgment of 15 September 2016, Koninklijke KPN and Others (C‐28/15, EU:C:2016:692, paragraphs 37 and 38), in which the Court of Justice ruled on the obligation, laid down in the second subparagraph of Article 19(2) of the Framework Directive, for the NRAs to take the utmost account of recommendations published by the Commission pursuant to paragraph 1 of that provision. The Court of Justice held that the NRAs should, as a rule, follow the guidance contained in Commission Recommendation 2009/396/EC of 7 May 2009 on the Regulatory Treatment of Fixed and Mobile Termination Rates in the EU (OJ 2009 L 124, p. 67). According to the applicant, the ACM was required, by analogy, to follow ‘as a rule’ the comments made by the Commission in the contested measure. |
| --- | --- |

41

In the first place, the applicant relies on the judgment of 15 September 2016, Koninklijke KPN and Others (C‐28/15, EU:C:2016:692, paragraphs 37 and 38), in which the Court of Justice ruled on the obligation, laid down in the second subparagraph of Article 19(2) of the Framework Directive, for the NRAs to take the utmost account of recommendations published by the Commission pursuant to paragraph 1 of that provision. The Court of Justice held that the NRAs should, as a rule, follow the guidance contained in Commission Recommendation 2009/396/EC of 7 May 2009 on the Regulatory Treatment of Fixed and Mobile Termination Rates in the EU (OJ 2009 L 124, p. 67). According to the applicant, the ACM was required, by analogy, to follow ‘as a rule’ the comments made by the Commission in the contested measure.

| 42 | However, contrary to what the applicant claims, that case-law does not imply that such comments are legally binding. First, it should be noted that the Court of Justice also held, in paragraphs 34 and 35 of the judgment of 15 September 2016, Koninklijke KPN and Others (C‐28/15, EU:C:2016:692), that, in accordance with Article 288 TFEU, such a recommendation is, on principle, not legally binding and that it follows that the NRA, upon adoption of a decision, is not bound by Recommendation 2009/396. Furthermore, by using the words ‘as a rule’, which the applicant underlines, the Court of Justice confirmed that the obligation to follow the indications contained in Recommendation 2009/396 left a certain discretion to the NRA and was not therefore legally binding on it. That is confirmed by the following sentence in paragraph 38 of that judgment, in which the Court of Justice added that an NRA may depart from the ‘pure Bulric’ model advocated by Recommendation 2009/396, where it appears to the NRA, in its assessment of a given situation, that that model is not appropriate to the circumstances. |
| --- | --- |

42

However, contrary to what the applicant claims, that case-law does not imply that such comments are legally binding. First, it should be noted that the Court of Justice also held, in paragraphs 34 and 35 of the judgment of 15 September 2016, Koninklijke KPN and Others (C‐28/15, EU:C:2016:692), that, in accordance with Article 288 TFEU, such a recommendation is, on principle, not legally binding and that it follows that the NRA, upon adoption of a decision, is not bound by Recommendation 2009/396. Furthermore, by using the words ‘as a rule’, which the applicant underlines, the Court of Justice confirmed that the obligation to follow the indications contained in Recommendation 2009/396 left a certain discretion to the NRA and was not therefore legally binding on it. That is confirmed by the following sentence in paragraph 38 of that judgment, in which the Court of Justice added that an NRA may depart from the ‘pure Bulric’ model advocated by Recommendation 2009/396, where it appears to the NRA, in its assessment of a given situation, that that model is not appropriate to the circumstances.

| 43 | In that regard, by establishing recommendations as a specific category of EU acts and by stating expressly that they ‘have no binding force’, Article 288 TFEU intended to confer on the institutions which usually adopt recommendations a power to exhort and to persuade, distinct from the power to adopt acts having binding force (judgment of 20 February 2018, Belgium v Commission, C‐16/16 P, EU:C:2018:79, paragraph 26). That finding also applies, by analogy, to the comments made by the Commission at the first phase of the European consultation procedure, under Article 7(3) of the Framework Directive, such as those set out in the measure contested in the present case. |
| --- | --- |

43

In that regard, by establishing recommendations as a specific category of EU acts and by stating expressly that they ‘have no binding force’, Article 288 TFEU intended to confer on the institutions which usually adopt recommendations a power to exhort and to persuade, distinct from the power to adopt acts having binding force (judgment of 20 February 2018, Belgium v Commission, C‐16/16 P, EU:C:2018:79, paragraph 26). That finding also applies, by analogy, to the comments made by the Commission at the first phase of the European consultation procedure, under Article 7(3) of the Framework Directive, such as those set out in the measure contested in the present case.

| 44 | Second, the expression ‘takes the utmost account’ highlights the non-binding character of the Commission’s comments under Article 7(3) of the Framework Directive. If such comments were binding, it would not be sufficient for an NRA to take the utmost account of them, at the risk of distorting the wording and purpose of that provision. In that regard, it should be noted that the Commission’s comments are equivalent to those made, where relevant, by other NRAs or by BEREC, so that, in the event that the comments made by these various institutional bodies proposed different approaches, the NRA concerned could follow the approach proposed by another NRA or BEREC, rather than that advocated by the Commission (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 93 and 94, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraphs 63 and 64). |
| --- | --- |

44

Second, the expression ‘takes the utmost account’ highlights the non-binding character of the Commission’s comments under Article 7(3) of the Framework Directive. If such comments were binding, it would not be sufficient for an NRA to take the utmost account of them, at the risk of distorting the wording and purpose of that provision. In that regard, it should be noted that the Commission’s comments are equivalent to those made, where relevant, by other NRAs or by BEREC, so that, in the event that the comments made by these various institutional bodies proposed different approaches, the NRA concerned could follow the approach proposed by another NRA or BEREC, rather than that advocated by the Commission (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 93 and 94, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraphs 63 and 64).

| 45 | In the second place, as the applicant claims, the Court of Justice has indeed held, in its judgment of 11 September 2003, Altair Chimica (C‐207/01, EU:C:2003:451, paragraph 41), that, even if recommendations are not intended to produce binding effects and are not capable of creating rights that individuals can rely on before a national court, they are not without any legal effect. |
| --- | --- |

45

In the second place, as the applicant claims, the Court of Justice has indeed held, in its judgment of 11 September 2003, Altair Chimica (C‐207/01, EU:C:2003:451, paragraph 41), that, even if recommendations are not intended to produce binding effects and are not capable of creating rights that individuals can rely on before a national court, they are not without any legal effect.

| 46 | However, the effects at issue in that case-law must be distinguished from binding legal effects, as alleged by the applicant, capable of affecting an applicant’s interests by bringing about a distinct change in its legal position. First, in the same paragraph of the judgment referred to by the applicant, the Court of Justice expressly illustrated the legal effects at issue by explaining that the national courts are bound to take recommendations into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding provisions of EU law (see judgment of 11 September 2003, Altair Chimica, C‐207/01, EU:C:2003:451, paragraph 41 and the case-law cited). |
| --- | --- |

46

However, the effects at issue in that case-law must be distinguished from binding legal effects, as alleged by the applicant, capable of affecting an applicant’s interests by bringing about a distinct change in its legal position. First, in the same paragraph of the judgment referred to by the applicant, the Court of Justice expressly illustrated the legal effects at issue by explaining that the national courts are bound to take recommendations into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding provisions of EU law (see judgment of 11 September 2003, Altair Chimica, C‐207/01, EU:C:2003:451, paragraph 41 and the case-law cited).

| 47 | Second, the requirement to take ‘the utmost account’ has a legal effect which differs from the effects alleged by the applicant, in that that requirement imposes an obligation to state reasons. Thus, an NRA must be able to explain divergences from the Commission’s comments (see, to that effect, order of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraph 65). That is also the meaning of paragraph 38 of the judgment of 15 September 2016, Koninklijke KPN and Others (C‐28/15, EU:C:2016:692), in which the Court of Justice held that an NRA may depart from the ‘pure Bulric’ model advocated by Recommendation 2009/396 by ‘giving reasons for its position’. |
| --- | --- |

47

Second, the requirement to take ‘the utmost account’ has a legal effect which differs from the effects alleged by the applicant, in that that requirement imposes an obligation to state reasons. Thus, an NRA must be able to explain divergences from the Commission’s comments (see, to that effect, order of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraph 65). That is also the meaning of paragraph 38 of the judgment of 15 September 2016, Koninklijke KPN and Others (C‐28/15, EU:C:2016:692), in which the Court of Justice held that an NRA may depart from the ‘pure Bulric’ model advocated by Recommendation 2009/396 by ‘giving reasons for its position’.

| 48 | In that regard, Article 19(2) of the Framework Directive expressly provides that ‘where a[n NRA] chooses not to follow a recommendation, it shall inform the Commission, giving the reasons for its position’. No formal obligation to state reasons is provided for in Article 7(3) of the Framework Directive as regards the comments made by the Commission on a draft measure submitted by an NRA (see, to that effect, order of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraph 65). |
| --- | --- |

48

In that regard, Article 19(2) of the Framework Directive expressly provides that ‘where a[n NRA] chooses not to follow a recommendation, it shall inform the Commission, giving the reasons for its position’. No formal obligation to state reasons is provided for in Article 7(3) of the Framework Directive as regards the comments made by the Commission on a draft measure submitted by an NRA (see, to that effect, order of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraph 65).

| 49 | In that respect, in the present case, the ACM explained, in Annex I to its decision of 27 September 2018, how it took the utmost account of the Commission’s comments. The substance and wording of that annex indicate that the NRA examined and commented on the comments of the Commission, without considering itself bound by them. |
| --- | --- |

49

In that respect, in the present case, the ACM explained, in Annex I to its decision of 27 September 2018, how it took the utmost account of the Commission’s comments. The substance and wording of that annex indicate that the NRA examined and commented on the comments of the Commission, without considering itself bound by them.

| 50 | In any event, an obligation to state reasons, incumbent on NRAs, would not be capable of affecting the interests of the applicant by bringing about a distinct change in its legal position (see, to that effect, order of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraph 65). |
| --- | --- |

50

In any event, an obligation to state reasons, incumbent on NRAs, would not be capable of affecting the interests of the applicant by bringing about a distinct change in its legal position (see, to that effect, order of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraph 65).

| 51 | In the third place, the applicant claims that the NRAs cannot ignore comments made in the context of the procedure referred to in Article 7(3) of the Framework Directive, without running the risk of infringing the duty of sincere cooperation provided for in Article 4(3) TEU. Relying on the judgment of16 April 2015, Prezes Urzędu Komunikacji Elektronicznej and Telefonia Dialog (C‐3/14, EU:C:2015:232), the applicant claims that that procedure aims, as is apparent from recital 15 of the Framework Directive, to ensure that decisions taken at national level do not have an adverse effect on the single market or other objectives of the TFEU. |
| --- | --- |

51

In the third place, the applicant claims that the NRAs cannot ignore comments made in the context of the procedure referred to in Article 7(3) of the Framework Directive, without running the risk of infringing the duty of sincere cooperation provided for in Article 4(3) TEU. Relying on the judgment of16 April 2015, Prezes Urzędu Komunikacji Elektronicznej and Telefonia Dialog (C‐3/14, EU:C:2015:232), the applicant claims that that procedure aims, as is apparent from recital 15 of the Framework Directive, to ensure that decisions taken at national level do not have an adverse effect on the single market or other objectives of the TFEU.

| 52 | However, the duty of sincere cooperation cannot lead to such comments having binding legal effects. The principle of sincere cooperation cannot have the effect of setting aside the conditions governing admissibility expressly laid down in Article 263 TFEU (judgment of 20 February 2018, Belgium v Commission, C‐16/16 P, EU:C:2018:79, paragraph 40). Furthermore, since the EU legislature expressly determined the legal effects which it wished to attribute to observations made under Article 7(3) of the Framework Directive, the duty of sincere cooperation cannot have a greater scope by attributing legal effects not intended by the legislature. |
| --- | --- |

52

However, the duty of sincere cooperation cannot lead to such comments having binding legal effects. The principle of sincere cooperation cannot have the effect of setting aside the conditions governing admissibility expressly laid down in Article 263 TFEU (judgment of 20 February 2018, Belgium v Commission, C‐16/16 P, EU:C:2018:79, paragraph 40). Furthermore, since the EU legislature expressly determined the legal effects which it wished to attribute to observations made under Article 7(3) of the Framework Directive, the duty of sincere cooperation cannot have a greater scope by attributing legal effects not intended by the legislature.

| 53 | In the fourth place, the applicant asserts that its position is confirmed by national case-law, citing a decision of the Bundesverwaltungsgericht (Federal Administrative Court, Germany). However, the foregoing analysis cannot be called into question by national case-law. According to settled case-law, the need for a uniform application of EU law means that, in so far as a provision thereof makes no reference to the law of the Member States with regard to a particular concept, that concept must be given an independent and uniform interpretation throughout the European Union, which must take into account the context of the provision and the objective pursued by the legislation in question (see, to that effect, judgment of 9 November 2016, Wathelet, C‐149/15, EU:C:2016:840, paragraph 28 and the case-law cited). In any event, it cannot be concluded from the extract cited by the applicant that the Bundesverwaltungsgericht (Federal Administrative Court) held that the Commission’s comments produced binding legal effects within the meaning of the first paragraph of Article 263 TFEU. |
| --- | --- |

53

In the fourth place, the applicant asserts that its position is confirmed by national case-law, citing a decision of the Bundesverwaltungsgericht (Federal Administrative Court, Germany). However, the foregoing analysis cannot be called into question by national case-law. According to settled case-law, the need for a uniform application of EU law means that, in so far as a provision thereof makes no reference to the law of the Member States with regard to a particular concept, that concept must be given an independent and uniform interpretation throughout the European Union, which must take into account the context of the provision and the objective pursued by the legislation in question (see, to that effect, judgment of 9 November 2016, Wathelet, C‐149/15, EU:C:2016:840, paragraph 28 and the case-law cited). In any event, it cannot be concluded from the extract cited by the applicant that the Bundesverwaltungsgericht (Federal Administrative Court) held that the Commission’s comments produced binding legal effects within the meaning of the first paragraph of Article 263 TFEU.

| 54 | In the light of the foregoing considerations, it must be held that the requirement that the NRA concerned must ‘take the utmost account’ of the comments made by the Commission under Article 7(3) of the Framework Directive does not mean that the contested measure produces binding legal effects. |
| --- | --- |

54

In the light of the foregoing considerations, it must be held that the requirement that the NRA concerned must ‘take the utmost account’ of the comments made by the Commission under Article 7(3) of the Framework Directive does not mean that the contested measure produces binding legal effects.

The arguments alleging that the contested measure amounts to authorisation

The arguments alleging that the contested measure amounts to authorisation

| 55 | The applicant submits that the Commission’s observations, although adopted in the form of a letter, amount to authorisation permitting the ACM to adopt its decision of 27 September 2018. |
| --- | --- |

55

The applicant submits that the Commission’s observations, although adopted in the form of a letter, amount to authorisation permitting the ACM to adopt its decision of 27 September 2018.

| 56 | In the first place, the applicant submits that the notification of comments under Article 7(3) of the Framework Directive and the opening of the second phase of Article 7 are two limbs of a single alternative, such that the Commission is faced with a binary choice between vetoing or not vetoing the draft measure notified by the NRA. |
| --- | --- |

56

In the first place, the applicant submits that the notification of comments under Article 7(3) of the Framework Directive and the opening of the second phase of Article 7 are two limbs of a single alternative, such that the Commission is faced with a binary choice between vetoing or not vetoing the draft measure notified by the NRA.

| 57 | First, it should be noted that, while it is true that the notification of comments and the opening of the second phase of the European consultation procedure amount to one option, there is no question, contrary to what the applicant claims, of a binary choice between vetoing or not vetoing the draft measure notified by the NRA. When the Commission opens the second phase of the European consultation procedure, it is acting, as appropriate, on the basis of Article 7(4) or Article 7a(1) of the Framework Directive, or both. It is only in the second phase of Article 7 that the Commission may decide to require the NRA to withdraw its draft measure, provided that it does not decide to lift its reservations concerning that draft measure. Conversely, the second phase of Article 7a may, at most, lead to the issuing of a recommendation which encourages the NRA concerned to modify or withdraw its draft measure. |
| --- | --- |

57

First, it should be noted that, while it is true that the notification of comments and the opening of the second phase of the European consultation procedure amount to one option, there is no question, contrary to what the applicant claims, of a binary choice between vetoing or not vetoing the draft measure notified by the NRA. When the Commission opens the second phase of the European consultation procedure, it is acting, as appropriate, on the basis of Article 7(4) or Article 7a(1) of the Framework Directive, or both. It is only in the second phase of Article 7 that the Commission may decide to require the NRA to withdraw its draft measure, provided that it does not decide to lift its reservations concerning that draft measure. Conversely, the second phase of Article 7a may, at most, lead to the issuing of a recommendation which encourages the NRA concerned to modify or withdraw its draft measure.

| 58 | In reality, even if the exercise of the right of veto provided for in Article 7(5)(a) of the Framework Directive gives rise to binding legal effects in that the NRA concerned would no longer be entitled to adopt the measures initially proposed, the fact that the Commission does not exercise its right of veto can be regarded as equivalent to it not having adopted a decision, so that that position does not give rise to any binding legal effect (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 105 and 106, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraphs 75 and 76). |
| --- | --- |

58

In reality, even if the exercise of the right of veto provided for in Article 7(5)(a) of the Framework Directive gives rise to binding legal effects in that the NRA concerned would no longer be entitled to adopt the measures initially proposed, the fact that the Commission does not exercise its right of veto can be regarded as equivalent to it not having adopted a decision, so that that position does not give rise to any binding legal effect (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 105 and 106, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraphs 75 and 76).

| 59 | Second, the NRA concerned derives its powers directly from the relevant provisions of the Framework Directive and their exercise does not require any authorisation from the Commission. Furthermore, no provision of that directive states that the fact that the Commission does not open the second phase of the European consultation procedure is to be regarded as equivalent to an approval of the notified draft measure authorising the NRA to act (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 95 and 96, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraphs 66 and 68). |
| --- | --- |

59

Second, the NRA concerned derives its powers directly from the relevant provisions of the Framework Directive and their exercise does not require any authorisation from the Commission. Furthermore, no provision of that directive states that the fact that the Commission does not open the second phase of the European consultation procedure is to be regarded as equivalent to an approval of the notified draft measure authorising the NRA to act (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 95 and 96, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraphs 66 and 68).

| 60 | Thus, if the NRA decides to adopt the national measure, in its initial or an amended form, the binding legal effects deriving from that measure are attributable to the NRA in question and not to the Commission’s comments or to the fact that the second phase of the European consultation procedure is not set in motion (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraph 106, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraph 77). |
| --- | --- |

60

Thus, if the NRA decides to adopt the national measure, in its initial or an amended form, the binding legal effects deriving from that measure are attributable to the NRA in question and not to the Commission’s comments or to the fact that the second phase of the European consultation procedure is not set in motion (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraph 106, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraph 77).

| 61 | In the second place, the applicant claims that the fact that the measures ultimately adopted by the ACM produce legal effects does not preclude the contested measure from producing binding legal effects, since the two measures are the result of separate administrative processes and the European consultation procedure is a mandatory step. |
| --- | --- |

61

In the second place, the applicant claims that the fact that the measures ultimately adopted by the ACM produce legal effects does not preclude the contested measure from producing binding legal effects, since the two measures are the result of separate administrative processes and the European consultation procedure is a mandatory step.

| 62 | In that regard, it is true that the European consultation procedure is a mandatory step in the process for adopting measures covered either by Articles 15 or 16 of the Framework Directive or by Articles 5 or 8 of Directive 2002/19, which affect trade between the Member States. However, that fact is not sufficient for it to be held that comments made under Article 7(3) of the Framework Directive produce binding legal effects. Any failure to comply with that mandatory step would have different effects. Thus, by way of example, if an NRA were not to open the European consultation procedure by failing to make a draft measure accessible to the other NRAs, the Commission or BEREC, or not to await the outcome of that procedure and adopt the envisaged measures, such actions could, as the case may be, lead to an action for failure to fulfil obligations before the EU judicature or an action against the measures adopted by the NRA before the national courts. |
| --- | --- |

62

In that regard, it is true that the European consultation procedure is a mandatory step in the process for adopting measures covered either by Articles 15 or 16 of the Framework Directive or by Articles 5 or 8 of Directive 2002/19, which affect trade between the Member States. However, that fact is not sufficient for it to be held that comments made under Article 7(3) of the Framework Directive produce binding legal effects. Any failure to comply with that mandatory step would have different effects. Thus, by way of example, if an NRA were not to open the European consultation procedure by failing to make a draft measure accessible to the other NRAs, the Commission or BEREC, or not to await the outcome of that procedure and adopt the envisaged measures, such actions could, as the case may be, lead to an action for failure to fulfil obligations before the EU judicature or an action against the measures adopted by the NRA before the national courts.

| 63 | It follows from the foregoing that the contested measure does not amount to authorisation which would have enabled the ACM to adopt its draft measure and would thereby produce binding legal effects. |
| --- | --- |

63

It follows from the foregoing that the contested measure does not amount to authorisation which would have enabled the ACM to adopt its draft measure and would thereby produce binding legal effects.

The arguments based on the applicant’s claim that its procedural rights were affected

The arguments based on the applicant’s claim that its procedural rights were affected

| 64 | The applicant claims that the contested measure affects its procedural rights, since it is deprived of any possibility of being heard in the second phase of the European consultation procedure. |
| --- | --- |

64

The applicant claims that the contested measure affects its procedural rights, since it is deprived of any possibility of being heard in the second phase of the European consultation procedure.

| 65 | In the first place, the applicant submits that the opening of the second phase of the European consultation procedure involves a certain number of procedural steps which would enable it to be heard and, where appropriate, could have influenced the measures ultimately adopted by the ACM. |
| --- | --- |

65

In the first place, the applicant submits that the opening of the second phase of the European consultation procedure involves a certain number of procedural steps which would enable it to be heard and, where appropriate, could have influenced the measures ultimately adopted by the ACM.

| 66 | However, even assuming that the safeguarding of an interested party’s procedural rights may be such as to influence whether a decision not to open a specific procedure is open to challenge, it is still necessary to examine whether, under the Framework Directive, the applicant enjoys procedural rights which the EU judicature should safeguard. |
| --- | --- |

66

However, even assuming that the safeguarding of an interested party’s procedural rights may be such as to influence whether a decision not to open a specific procedure is open to challenge, it is still necessary to examine whether, under the Framework Directive, the applicant enjoys procedural rights which the EU judicature should safeguard.

| 67 | In that regard, first, it must be borne in mind from the outset that Article 6 of the Framework Directive provides that where an NRA intends to take measures which have a significant impact on the relevant market, it must organise a public consultation at national level so as to enable the interested parties to comment on the draft measure within a reasonable period. In accordance with Article 7(3) of the Framework Directive, that national consultation must take place prior to the European consultation, so that the European consultation takes place in the light of the comments of the interested parties, as set out in recital 17 of Directive 2009/140, which amended the Framework Directive. |
| --- | --- |

67

In that regard, first, it must be borne in mind from the outset that Article 6 of the Framework Directive provides that where an NRA intends to take measures which have a significant impact on the relevant market, it must organise a public consultation at national level so as to enable the interested parties to comment on the draft measure within a reasonable period. In accordance with Article 7(3) of the Framework Directive, that national consultation must take place prior to the European consultation, so that the European consultation takes place in the light of the comments of the interested parties, as set out in recital 17 of Directive 2009/140, which amended the Framework Directive.

| 68 | Next, it should be noted that the European consultation procedure as provided by the Framework Directive, whether in its first or second phase, relates exclusively to the relations between the NRA concerned, on the one hand, and other NRAs, the Commission and BEREC on the other, since the Framework Directive is silent as regards possible involvement by interested parties at EU level (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 119 to 122, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraphs 90 to 92). |
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68

Next, it should be noted that the European consultation procedure as provided by the Framework Directive, whether in its first or second phase, relates exclusively to the relations between the NRA concerned, on the one hand, and other NRAs, the Commission and BEREC on the other, since the Framework Directive is silent as regards possible involvement by interested parties at EU level (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 119 to 122, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraphs 90 to 92).

| 69 | Even assuming that the Commission does routinely both publish on its website the measure by which it opens the second phase of the European consultation procedure and invite the interested parties to submit their comments, no provision of the Framework Directive requires it to organise a consultation of interested parties at EU level, and it may examine the comments of the parties concerned obtained at national level during the public consultation prior to the European consultation procedure. |
| --- | --- |

69

Even assuming that the Commission does routinely both publish on its website the measure by which it opens the second phase of the European consultation procedure and invite the interested parties to submit their comments, no provision of the Framework Directive requires it to organise a consultation of interested parties at EU level, and it may examine the comments of the parties concerned obtained at national level during the public consultation prior to the European consultation procedure.

| 70 | In reality, where the Framework Directive provides for additional participation by the interested parties, Article 7(6) and Article 7a(6) of the Framework Directive provide that it is for the NRA concerned to organise, at national level, a new public consultation, in accordance with Article 6 of the Framework Directive. |
| --- | --- |

70

In reality, where the Framework Directive provides for additional participation by the interested parties, Article 7(6) and Article 7a(6) of the Framework Directive provide that it is for the NRA concerned to organise, at national level, a new public consultation, in accordance with Article 6 of the Framework Directive.

| 71 | Second, Article 4 of the Framework Directive provides for a right to challenge an NRA measure before an independent body, the decision of which, if that body is not judicial in character, is to be subject to review by a court or tribunal within the meaning of Article 267 TFEU. According to the legal framework established by the Framework Directive, measures affecting the interests of undertakings operating in the electronic communications sector are adopted by NRAs at national level, and not by the Commission, so that they must be subject to effective review at national level. |
| --- | --- |

71

Second, Article 4 of the Framework Directive provides for a right to challenge an NRA measure before an independent body, the decision of which, if that body is not judicial in character, is to be subject to review by a court or tribunal within the meaning of Article 267 TFEU. According to the legal framework established by the Framework Directive, measures affecting the interests of undertakings operating in the electronic communications sector are adopted by NRAs at national level, and not by the Commission, so that they must be subject to effective review at national level.

| 72 | The fact that the second phase of the European consultation procedure is not opened, as in the present case, implies that the final decision will be taken at national level, through the adoption, as the case may be, of the envisaged measures. Thus, the procedural rights of the interested parties may be safeguarded before national courts or tribunals (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 117 to 121, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraphs 88 to 92). |
| --- | --- |

72

The fact that the second phase of the European consultation procedure is not opened, as in the present case, implies that the final decision will be taken at national level, through the adoption, as the case may be, of the envisaged measures. Thus, the procedural rights of the interested parties may be safeguarded before national courts or tribunals (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 117 to 121, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraphs 88 to 92).

| 73 | In the second place, the applicant relies, in particular, on the role played by BEREC in the second phase of the European consultation procedure. In that regard, since that role results from amendments to the Framework Directive subsequent to the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384), the applicant claims that the present case must be distinguished from the case which gave rise to that order. |
| --- | --- |

73

In the second place, the applicant relies, in particular, on the role played by BEREC in the second phase of the European consultation procedure. In that regard, since that role results from amendments to the Framework Directive subsequent to the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384), the applicant claims that the present case must be distinguished from the case which gave rise to that order.

| 74 | In that regard, BEREC may, indeed, now be involved in the second phase of the European consultation procedure pursuant to Article 7(5) and Article 7a(3) to (5) of the Framework Directive. However, that fact does not mean that the applicant has procedural rights which should be safeguarded by means of an action under Article 263 TFEU. |
| --- | --- |

74

In that regard, BEREC may, indeed, now be involved in the second phase of the European consultation procedure pursuant to Article 7(5) and Article 7a(3) to (5) of the Framework Directive. However, that fact does not mean that the applicant has procedural rights which should be safeguarded by means of an action under Article 263 TFEU.

| 75 | First, it should be noted, as the Commission rightly does, that the opening of the second phase of the European consultation procedure is not necessary in order to enable BEREC to share its position on a draft measure, given that, under Article 7(3) of the Framework Directive, the latter may, even in the first phase, make comments to the NRA concerned, within the same period of 1 month which applies without distinction to the NRAs and the Commission. |
| --- | --- |

75

First, it should be noted, as the Commission rightly does, that the opening of the second phase of the European consultation procedure is not necessary in order to enable BEREC to share its position on a draft measure, given that, under Article 7(3) of the Framework Directive, the latter may, even in the first phase, make comments to the NRA concerned, within the same period of 1 month which applies without distinction to the NRAs and the Commission.

| 76 | Second, the distinction drawn by the applicant between the comments that BEREC may make on a draft measure, in the context of the first phase of the European consultation procedure, and the opinion that that body may issue, in the context of the second phase of the European consultation procedure pursuant to Article 7(5) of the Framework Directive, is ineffective. |
| --- | --- |

76

Second, the distinction drawn by the applicant between the comments that BEREC may make on a draft measure, in the context of the first phase of the European consultation procedure, and the opinion that that body may issue, in the context of the second phase of the European consultation procedure pursuant to Article 7(5) of the Framework Directive, is ineffective.

| 77 | First of all, the opinion of BEREC in the second phase of the European consultation procedure does indeed concern the measure taken by the Commission to open the second phase of the European consultation procedure and the reservations expressed in that opinion, rather than merely the draft measure, as is the case in the first phase. However, both exchanges of views ultimately concern the draft measure made accessible by the NRA concerned. |
| --- | --- |

77

First of all, the opinion of BEREC in the second phase of the European consultation procedure does indeed concern the measure taken by the Commission to open the second phase of the European consultation procedure and the reservations expressed in that opinion, rather than merely the draft measure, as is the case in the first phase. However, both exchanges of views ultimately concern the draft measure made accessible by the NRA concerned.

| 78 | For the same reason, it is irrelevant that the Commission, under Article 7(5) of the Framework Directive, must take ‘the utmost account’ of the opinion issued by BEREC. Moreover, that requirement is not relevant, since the Commission must generally take ‘the utmost account of any opinion, recommendation, guidelines, advice or regulatory best practice adopted by BEREC’, in accordance with Article 3(3) of Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing [BEREC] and the Office (OJ 2009 L 337, p. 1) (repealed and replaced by Article 4(4) of Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018 establishing [BEREC] and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 (OJ 2018 L 321, p. 1)). Thus, in so far as BEREC should, before the Commission, make comments in the first phase of the European consultation procedure, the Commission would in any event be required to take the utmost account of those comments. |
| --- | --- |

78

For the same reason, it is irrelevant that the Commission, under Article 7(5) of the Framework Directive, must take ‘the utmost account’ of the opinion issued by BEREC. Moreover, that requirement is not relevant, since the Commission must generally take ‘the utmost account of any opinion, recommendation, guidelines, advice or regulatory best practice adopted by BEREC’, in accordance with Article 3(3) of Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing [BEREC] and the Office (OJ 2009 L 337, p. 1) (repealed and replaced by Article 4(4) of Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018 establishing [BEREC] and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 (OJ 2018 L 321, p. 1)). Thus, in so far as BEREC should, before the Commission, make comments in the first phase of the European consultation procedure, the Commission would in any event be required to take the utmost account of those comments.

| 79 | Third, the involvement, in the second phase of the European consultation procedure, of BEREC, which is an institutional body separate from interested parties, is irrelevant to the protection of the applicant’s alleged procedural rights. |
| --- | --- |

79

Third, the involvement, in the second phase of the European consultation procedure, of BEREC, which is an institutional body separate from interested parties, is irrelevant to the protection of the applicant’s alleged procedural rights.

| 80 | In the third place, the applicant refers to the judgments of 24 May 2011, Commission v Kronoply and Kronotex (C‐83/09 P, EU:C:2011:341, paragraphs 57 to 59), and of 27 February 2014, Stichting Woonpunt and Others v Commission (C‐132/12 P, EU:C:2014:100, paragraph 30), which relate to State aid. In those cases, the issue of compliance with procedural rights was relied on in actions against Commission decisions referred to as ‘decisions not to raise objections’, falling under Article 4(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1), subsequently replaced by Article 4(3) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9). |
| --- | --- |

80

In the third place, the applicant refers to the judgments of 24 May 2011, Commission v Kronoply and Kronotex (C‐83/09 P, EU:C:2011:341, paragraphs 57 to 59), and of 27 February 2014, Stichting Woonpunt and Others v Commission (C‐132/12 P, EU:C:2014:100, paragraph 30), which relate to State aid. In those cases, the issue of compliance with procedural rights was relied on in actions against Commission decisions referred to as ‘decisions not to raise objections’, falling under Article 4(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1), subsequently replaced by Article 4(3) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).

| 81 | However, that case-law is not relevant to the present case. First, review of the compatibility of State aid falls within the exclusive competence of the Commission, in accordance with Article 108(3) TFEU, so that it is only at EU level that interested parties can usefully submit any comments that they might have. |
| --- | --- |

81

However, that case-law is not relevant to the present case. First, review of the compatibility of State aid falls within the exclusive competence of the Commission, in accordance with Article 108(3) TFEU, so that it is only at EU level that interested parties can usefully submit any comments that they might have.

| 82 | In the present case, however, given that the measures referred to in the Framework Directive are in principle adopted at national level and not by the Commission, it is sufficient that interested parties be heard at national level, at least if the Commission confines itself to making comments under Article 7(3) of the Framework Directive (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraph 128, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraph 94). |
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82

In the present case, however, given that the measures referred to in the Framework Directive are in principle adopted at national level and not by the Commission, it is sufficient that interested parties be heard at national level, at least if the Commission confines itself to making comments under Article 7(3) of the Framework Directive (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraph 128, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraph 94).

| 83 | Second, the decisions taken by the Commission in the cases referred to by the applicant produce binding legal effects, since they expressly declare the aid in question compatible with the internal market. |
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83

Second, the decisions taken by the Commission in the cases referred to by the applicant produce binding legal effects, since they expressly declare the aid in question compatible with the internal market.

| 84 | However, in the present case, the contested measure does not explicitly declare the draft measure compatible with EU law. The legal framework established by the Framework Directive was applicable before the draft measure was made accessible to the Commission and remains applicable irrespective of the position taken by the latter in the contested measure. The contested measure does not therefore produce binding legal effects and the case-law cited by the applicant is therefore not relevant to the present case (see, to that effect, order of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 125 and 127). |
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84

However, in the present case, the contested measure does not explicitly declare the draft measure compatible with EU law. The legal framework established by the Framework Directive was applicable before the draft measure was made accessible to the Commission and remains applicable irrespective of the position taken by the latter in the contested measure. The contested measure does not therefore produce binding legal effects and the case-law cited by the applicant is therefore not relevant to the present case (see, to that effect, order of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraphs 125 and 127).

| 85 | In the light of the foregoing considerations, it must be concluded that the contested measure, which excludes the opening of the second phase of the European consultation procedure, does not affect the applicant’s procedural rights. |
| --- | --- |

85

In the light of the foregoing considerations, it must be concluded that the contested measure, which excludes the opening of the second phase of the European consultation procedure, does not affect the applicant’s procedural rights.

The content of the contested measure

The content of the contested measure

| 86 | It is also necessary to examine the content of the contested measure in order to assess whether that measure, notwithstanding the context in which it was adopted, nevertheless produces binding legal effects. |
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86

It is also necessary to examine the content of the contested measure in order to assess whether that measure, notwithstanding the context in which it was adopted, nevertheless produces binding legal effects.

The arguments based on the wording of the contested measure

The arguments based on the wording of the contested measure

| 87 | The Commission states that it is clear from the wording of the contested measure that it did not intend to attribute binding legal effects to it. |
| --- | --- |

87

The Commission states that it is clear from the wording of the contested measure that it did not intend to attribute binding legal effects to it.

| 88 | In that regard, it should be noted, in the first place, that the contested measure mentions several instances of ‘comments’. Thus, first, the subject heading of the contested measure states that it is ‘comments pursuant to Article 7(3) of [the Framework Directive]’, despite the inappropriate use of the term ‘decision’ in the title of the subject heading. |
| --- | --- |

88

In that regard, it should be noted, in the first place, that the contested measure mentions several instances of ‘comments’. Thus, first, the subject heading of the contested measure states that it is ‘comments pursuant to Article 7(3) of [the Framework Directive]’, despite the inappropriate use of the term ‘decision’ in the title of the subject heading.

| 89 | Next, under the heading ‘Procedure’, the Commission points to the fact that, ‘pursuant to Article 7(3) of the Framework Directive, [NRAs], [BEREC] and the Commission may make comments on notified draft measures to the NRA concerned’. |
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89

Next, under the heading ‘Procedure’, the Commission points to the fact that, ‘pursuant to Article 7(3) of the Framework Directive, [NRAs], [BEREC] and the Commission may make comments on notified draft measures to the NRA concerned’.

| 90 | In addition, under the heading ‘Comments’, the Commission states that it ‘has examined the notification and the additional information provided by the ACM and has the following comments’, supplemented by a footnote stating ‘in accordance with Article 7(3) of the Framework Directive’. |
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90

In addition, under the heading ‘Comments’, the Commission states that it ‘has examined the notification and the additional information provided by the ACM and has the following comments’, supplemented by a footnote stating ‘in accordance with Article 7(3) of the Framework Directive’.

| 91 | Lastly, the Commission also states, at the end of the contested measure, that ‘pursuant to Article 7(7) of the Framework Directive, [the] ACM shall take the utmost account of the comments of other NRAs, BEREC and the Commission and may adopt the resulting draft measure; where it does so, [it] shall communicate it to the Commission’. |
| --- | --- |

91

Lastly, the Commission also states, at the end of the contested measure, that ‘pursuant to Article 7(7) of the Framework Directive, [the] ACM shall take the utmost account of the comments of other NRAs, BEREC and the Commission and may adopt the resulting draft measure; where it does so, [it] shall communicate it to the Commission’.

| 92 | In the second place, the Commission’s comments are essentially worded in non-mandatory terms. Thus, the Commission first concludes that it ‘does not object to the finding of joint SMP’. |
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92

In the second place, the Commission’s comments are essentially worded in non-mandatory terms. Thus, the Commission first concludes that it ‘does not object to the finding of joint SMP’.

| 93 | Next, as regards the proportionality of the proposed remedies, the Commission, in particular, ‘asks [the] ACM to reinforce its reasoning’ as to the appropriateness and proportionality of its proposed measures and ‘invites [the] ACM to better explain’ how those measures would make it possible to achieve the objective of efficient investment. |
| --- | --- |

93

Next, as regards the proportionality of the proposed remedies, the Commission, in particular, ‘asks [the] ACM to reinforce its reasoning’ as to the appropriateness and proportionality of its proposed measures and ‘invites [the] ACM to better explain’ how those measures would make it possible to achieve the objective of efficient investment.

| 94 | Moreover, as regards the price control remedy envisaged, the Commission ‘asks [the] ACM to consider’ another approach to price control. |
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94

Moreover, as regards the price control remedy envisaged, the Commission ‘asks [the] ACM to consider’ another approach to price control.

| 95 | Lastly, in its final remarks, the Commission, inter alia, ‘invites [the] ACM to closely monitor’ market developments specifically with regard to possible commitments regarding cooperative arrangements or co-investment and their impact on investment levels as well as price and competitive intensity at retail level. |
| --- | --- |

95

Lastly, in its final remarks, the Commission, inter alia, ‘invites [the] ACM to closely monitor’ market developments specifically with regard to possible commitments regarding cooperative arrangements or co-investment and their impact on investment levels as well as price and competitive intensity at retail level.

| 96 | It follows that, by the contested measure, the Commission did not seek to impose legally binding obligations, which is an interpretation shared by the ACM, the addressee of that measure, as is apparent from the wording of its decision of 27 September 2018, in particular Annex I thereto. |
| --- | --- |

96

It follows that, by the contested measure, the Commission did not seek to impose legally binding obligations, which is an interpretation shared by the ACM, the addressee of that measure, as is apparent from the wording of its decision of 27 September 2018, in particular Annex I thereto.

The arguments based on the subject matter of the comments set out in the contested measure

The arguments based on the subject matter of the comments set out in the contested measure

| 97 | The applicant submits that the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384), is not relevant to the present case. In the case which gave rise to that order, the Comisión del Mercado de las Telecomunicaciones (Commission of the telecommunications market, Spain) made a draft measure accessible to the Commission, registered as Case ES/2005/0330, and the latter made comments pursuant to Article 7(3) of the Framework Directive. In an action brought under Article 263 TFEU, the Court held, inter alia, that the Commission’s comments did not constitute an act producing binding legal effects. |
| --- | --- |

97

The applicant submits that the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384), is not relevant to the present case. In the case which gave rise to that order, the Comisión del Mercado de las Telecomunicaciones (Commission of the telecommunications market, Spain) made a draft measure accessible to the Commission, registered as Case ES/2005/0330, and the latter made comments pursuant to Article 7(3) of the Framework Directive. In an action brought under Article 263 TFEU, the Court held, inter alia, that the Commission’s comments did not constitute an act producing binding legal effects.

| 98 | According to the applicant, the facts of the present case may be distinguished from those relevant to the case that gave rise to the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384). Thus, first, the applicant submits that the contested measure contains comments concerning the market definition and the remedies envisaged by the ACM, whereas the comments in case ES/2005/0330 related to the economic analysis of SMP and thus amounted to reservations of a less fundamental nature. Second, contrary to the Spanish NRA’s analysis of SMP in case ES/2005/0330, the ACM’s approach in the present case is, according to the applicant, manifestly and prima facie contrary to the regulatory framework, since it deviates from the guidance contained in the relevant guidance documents, namely Commission Recommendation 2014/710/EU of 9 October 2014 on relevant product and service markets in the electronic communications sector susceptible to ex ante regulation in accordance with [the Framework Directive] (OJ 2014 L 295, p. 79) and Commission Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services (OJ 2018 C 159, p. 1). |
| --- | --- |

98

According to the applicant, the facts of the present case may be distinguished from those relevant to the case that gave rise to the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384). Thus, first, the applicant submits that the contested measure contains comments concerning the market definition and the remedies envisaged by the ACM, whereas the comments in case ES/2005/0330 related to the economic analysis of SMP and thus amounted to reservations of a less fundamental nature. Second, contrary to the Spanish NRA’s analysis of SMP in case ES/2005/0330, the ACM’s approach in the present case is, according to the applicant, manifestly and prima facie contrary to the regulatory framework, since it deviates from the guidance contained in the relevant guidance documents, namely Commission Recommendation 2014/710/EU of 9 October 2014 on relevant product and service markets in the electronic communications sector susceptible to ex ante regulation in accordance with [the Framework Directive] (OJ 2014 L 295, p. 79) and Commission Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services (OJ 2018 C 159, p. 1).

| 99 | In the first place, it should be noted, as the Commission rightly observes, that the applicant does not explain how the differences in the subject matter of the Commission’s comments justify distinguishing the present case from that which gave rise to the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384). |
| --- | --- |

99

In the first place, it should be noted, as the Commission rightly observes, that the applicant does not explain how the differences in the subject matter of the Commission’s comments justify distinguishing the present case from that which gave rise to the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384).

| 100 | First, the wording of Article 7(3) of the Framework Directive does not draw any distinction relating to the subject matter of the comments made by the Commission in the first phase of the European consultation procedure. |
| --- | --- |

100

First, the wording of Article 7(3) of the Framework Directive does not draw any distinction relating to the subject matter of the comments made by the Commission in the first phase of the European consultation procedure.

| 101 | Second, it is true that the subject matter of the Commission’s reservations determines whether it opens the second phase of Article 7, the second phase of Article 7a, or both phases. However, even if the comments made in the present case did amount to reservations justifying the opening of the second phase of the European consultation procedure, the provision in question, namely Article 7(4) of the Framework Directive, would have been applicable both in case ES/2005/0330 and in the present case, since reservations concerning SMP or market definition fall within the scope of that provision. Moreover, the distinction drawn by the applicant between the theoretical analysis and the economic analysis of SMP is irrelevant in that regard. |
| --- | --- |

101

Second, it is true that the subject matter of the Commission’s reservations determines whether it opens the second phase of Article 7, the second phase of Article 7a, or both phases. However, even if the comments made in the present case did amount to reservations justifying the opening of the second phase of the European consultation procedure, the provision in question, namely Article 7(4) of the Framework Directive, would have been applicable both in case ES/2005/0330 and in the present case, since reservations concerning SMP or market definition fall within the scope of that provision. Moreover, the distinction drawn by the applicant between the theoretical analysis and the economic analysis of SMP is irrelevant in that regard.

| 102 | In the second place, according to the applicant, contrary to case ES/2005/0330, the draft measure in the present case would be inconsistent with the regulatory framework in that, on the one hand, the market definition diverges from the approach set out in Recommendation 2014/710 and, on the other, the analysis of joint significant market power does not follow the analytical framework of the Commission’s guidelines on market analysis and the assessment of market power under the EU regulatory framework for electronic communications networks and services. The ACM should, as a rule, have followed the guidelines contained in those guidance documents. |
| --- | --- |

102

In the second place, according to the applicant, contrary to case ES/2005/0330, the draft measure in the present case would be inconsistent with the regulatory framework in that, on the one hand, the market definition diverges from the approach set out in Recommendation 2014/710 and, on the other, the analysis of joint significant market power does not follow the analytical framework of the Commission’s guidelines on market analysis and the assessment of market power under the EU regulatory framework for electronic communications networks and services. The ACM should, as a rule, have followed the guidelines contained in those guidance documents.

| 103 | In that regard, the Court notes that the ACM may depart from the guidelines contained in those guidance documents if it appears to it, in the context of its assessment of a given situation, that those guidelines are not appropriate to the circumstances, as explained in paragraphs 41 to 43 above. In the present case, in the light of the information provided by the ACM, in particular as regards the particularities of the market in the Netherlands, the Commission considered it sufficient to make comments without opening the second phase of the European consultation procedure. |
| --- | --- |

103

In that regard, the Court notes that the ACM may depart from the guidelines contained in those guidance documents if it appears to it, in the context of its assessment of a given situation, that those guidelines are not appropriate to the circumstances, as explained in paragraphs 41 to 43 above. In the present case, in the light of the information provided by the ACM, in particular as regards the particularities of the market in the Netherlands, the Commission considered it sufficient to make comments without opening the second phase of the European consultation procedure.

| 104 | In the third place and in any event, the Court notes that the difference in the subject matter of the Commission’s comments and departures from the guidance documents, put forward by the applicant, are irrelevant to the legal effects of comments notified to an NRA under Article 7(3) of the Framework Directive. |
| --- | --- |

104

In the third place and in any event, the Court notes that the difference in the subject matter of the Commission’s comments and departures from the guidance documents, put forward by the applicant, are irrelevant to the legal effects of comments notified to an NRA under Article 7(3) of the Framework Directive.

| 105 | It follows from the foregoing considerations that neither the legal context in which the contested measure was adopted nor the content of that measure demonstrate that the measure produces binding legal effects. It is therefore necessary to examine whether or not the contested measure is preparatory in nature. |
| --- | --- |

105

It follows from the foregoing considerations that neither the legal context in which the contested measure was adopted nor the content of that measure demonstrate that the measure produces binding legal effects. It is therefore necessary to examine whether or not the contested measure is preparatory in nature.

The preparatory nature of the contested measure

The preparatory nature of the contested measure

The arguments based on the conclusion of an internal procedure

The arguments based on the conclusion of an internal procedure

| 106 | The applicant contests the Commission’s argument that the contested measure is a preparatory act. The applicant submits that the contested measure constitutes the final phase in an administrative procedure at EU level. According to the applicant’s line of reasoning, as the Commission is no longer able to take action at a later phase, the contested measure reflects the final position of the Commission following an internal procedure, contrary to the relevant circumstances of the case-law cited in support of the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384, paragraph 97). Moreover, unless it is found that the contested measure is final in nature, it would not be possible to challenge the legality of measures of that kind. |
| --- | --- |

106

The applicant contests the Commission’s argument that the contested measure is a preparatory act. The applicant submits that the contested measure constitutes the final phase in an administrative procedure at EU level. According to the applicant’s line of reasoning, as the Commission is no longer able to take action at a later phase, the contested measure reflects the final position of the Commission following an internal procedure, contrary to the relevant circumstances of the case-law cited in support of the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‐109/06, EU:T:2007:384, paragraph 97). Moreover, unless it is found that the contested measure is final in nature, it would not be possible to challenge the legality of measures of that kind.

| 107 | In that regard, it should be noted, in the first place, that, notwithstanding the fact that the comments made by the Commission are not followed by another act of the EU institutions, unlike, as noted by the applicant, the relevant circumstances of the case-law referred to in paragraph 106 above, the Court expressly considered that a Commission letter of comments, under Article 7(3) of the Framework Directive, constituted a preparatory EU act in the context of a procedure which leads to the adoption of national measures by the NRA concerned (order of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraph 97). |
| --- | --- |

107

In that regard, it should be noted, in the first place, that, notwithstanding the fact that the comments made by the Commission are not followed by another act of the EU institutions, unlike, as noted by the applicant, the relevant circumstances of the case-law referred to in paragraph 106 above, the Court expressly considered that a Commission letter of comments, under Article 7(3) of the Framework Directive, constituted a preparatory EU act in the context of a procedure which leads to the adoption of national measures by the NRA concerned (order of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraph 97).

| 108 | In the second place, as the Commission rightly states, the European consultation procedure, which has led in the present case to the transmission of comments by the Commission to the NRA, does not constitute a culmination, but rather only one step in the administrative procedure leading to the adoption of the measures commented upon in those comments. |
| --- | --- |

108

In the second place, as the Commission rightly states, the European consultation procedure, which has led in the present case to the transmission of comments by the Commission to the NRA, does not constitute a culmination, but rather only one step in the administrative procedure leading to the adoption of the measures commented upon in those comments.

| 109 | As is apparent from the foregoing analysis, the regulatory framework applicable in the present case does not aim to establish a division between two powers, one national, the other of the European Union, with separate purposes, but, on the contrary, vests exclusive decision-making power in the NRAs. That power is qualified only by the Commission’s right of veto in certain circumstances, into which the present case does not fall, and which in any event cannot result in measures being adopted by the Commission rather than an NRA. |
| --- | --- |

109

As is apparent from the foregoing analysis, the regulatory framework applicable in the present case does not aim to establish a division between two powers, one national, the other of the European Union, with separate purposes, but, on the contrary, vests exclusive decision-making power in the NRAs. That power is qualified only by the Commission’s right of veto in certain circumstances, into which the present case does not fall, and which in any event cannot result in measures being adopted by the Commission rather than an NRA.

| 110 | Any involvement of the Commission, the other NRAs and BEREC in the course of the procedure leading to the adoption of national measures cannot affect their classification as ‘national measures’ where the acts of the Commission, the other NRAs and BEREC constitute a phase of a procedure in which a particular NRA exercises, alone, the final decision-making power without being bound by the preparatory acts of those institutional bodies (see, by analogy, judgment of 19 December 2018, Berlusconi and Fininvest, C‐219/17, EU:C:2018:1023, paragraphs 41 to 44). |
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110

Any involvement of the Commission, the other NRAs and BEREC in the course of the procedure leading to the adoption of national measures cannot affect their classification as ‘national measures’ where the acts of the Commission, the other NRAs and BEREC constitute a phase of a procedure in which a particular NRA exercises, alone, the final decision-making power without being bound by the preparatory acts of those institutional bodies (see, by analogy, judgment of 19 December 2018, Berlusconi and Fininvest, C‐219/17, EU:C:2018:1023, paragraphs 41 to 44).

| 111 | In the third place, by opting for an administrative procedure under which the Commission, the other NRAs and BEREC adopt acts that are preparatory to final measures of the NRA concerned which produce binding legal effects and are capable of adversely affecting a person, the EU legislature sought to establish between those institutional bodies a specific cooperation mechanism which is nevertheless based on the exclusive and final decision-making power of the NRA concerned. |
| --- | --- |

111

In the third place, by opting for an administrative procedure under which the Commission, the other NRAs and BEREC adopt acts that are preparatory to final measures of the NRA concerned which produce binding legal effects and are capable of adversely affecting a person, the EU legislature sought to establish between those institutional bodies a specific cooperation mechanism which is nevertheless based on the exclusive and final decision-making power of the NRA concerned.

| 112 | In order for such a decision-making process to be effective, there must necessarily be a single judicial review, which is conducted only once the measures of the NRA concerned bringing the administrative procedure to an end have been adopted — measures which are, alone, capable of producing binding legal effects such as to affect the applicant’s interests by bringing about a distinct change in his legal position. Thus, Article 263 TFEU read in the light of the duty of sincere cooperation requires that measures adopted by institutional bodies other than the NRA concerned cannot be subject to review by the EU Courts under Article 263 TFEU (see, by analogy, judgment of 19 December 2018, Berlusconi and Fininvest, C‐219/17, EU:C:2018:1023, paragraphs 47 to 49). |
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112

In order for such a decision-making process to be effective, there must necessarily be a single judicial review, which is conducted only once the measures of the NRA concerned bringing the administrative procedure to an end have been adopted — measures which are, alone, capable of producing binding legal effects such as to affect the applicant’s interests by bringing about a distinct change in his legal position. Thus, Article 263 TFEU read in the light of the duty of sincere cooperation requires that measures adopted by institutional bodies other than the NRA concerned cannot be subject to review by the EU Courts under Article 263 TFEU (see, by analogy, judgment of 19 December 2018, Berlusconi and Fininvest, C‐219/17, EU:C:2018:1023, paragraphs 47 to 49).

The arguments based on the right to effective judicial protection

The arguments based on the right to effective judicial protection

| 113 | The applicant submits that the right to effective judicial protection, enshrined in particular in Article 47 of the Charter of Fundamental Rights of the European Union, requires that the action for the annulment of the measure contested before the Court be deemed admissible, since this Court is the only court with jurisdiction to review the validity of an act of the EU institutions. According to the applicant, that is all the more necessary since the national courts attribute certain authority to comments made pursuant to Article 7(3) of the Framework Directive. |
| --- | --- |

113

The applicant submits that the right to effective judicial protection, enshrined in particular in Article 47 of the Charter of Fundamental Rights of the European Union, requires that the action for the annulment of the measure contested before the Court be deemed admissible, since this Court is the only court with jurisdiction to review the validity of an act of the EU institutions. According to the applicant, that is all the more necessary since the national courts attribute certain authority to comments made pursuant to Article 7(3) of the Framework Directive.

| 114 | In that regard, in the first place, it must be borne in mind that, although the conditions of admissibility laid down in Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, that interpretation cannot have the effect of setting aside the conditions expressly laid down in that treaty (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‐583/11 P, EU:C:2013:625, paragraph 98 and the case-law cited, and order of 28 February 2017, NF v European Council, T‐192/16, EU:T:2017:128, paragraph 74). |
| --- | --- |

114

In that regard, in the first place, it must be borne in mind that, although the conditions of admissibility laid down in Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, that interpretation cannot have the effect of setting aside the conditions expressly laid down in that treaty (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‐583/11 P, EU:C:2013:625, paragraph 98 and the case-law cited, and order of 28 February 2017, NF v European Council, T‐192/16, EU:T:2017:128, paragraph 74).

| 115 | In the second place, in the system established by the Framework Directive, NRAs play a central role and, in that regard, Article 4 of that directive requires Member States to establish an appeal mechanism in respect of the decisions of those authorities, thereby organising a full system of judicial protection (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraph 101, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraph 71). |
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115

In the second place, in the system established by the Framework Directive, NRAs play a central role and, in that regard, Article 4 of that directive requires Member States to establish an appeal mechanism in respect of the decisions of those authorities, thereby organising a full system of judicial protection (see, to that effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission, T‐109/06, EU:T:2007:384, paragraph 101, and of 22 February 2008, Base v Commission, T‐295/06, not published, EU:T:2008:48, paragraph 71).

| 116 | Thus, first, where, as in the present case, the Commission’s role is limited to making comments pursuant to Article 7(3) of the Framework Directive leading, in principle, to the adoption of a decision by the NRA concerned, a right of action is available before the relevant national courts. If necessary, the national courts may, in accordance with Article 267 TFEU, refer questions to the Court of Justice for a preliminary ruling concerning the EU regulatory framework applicable to a given situation. Even though Article 263 TFEU excludes the review, by the Court of Justice, of non-binding EU acts, Article 267 TFEU confers on the Court of Justice jurisdiction to deliver a preliminary ruling on the validity and interpretation of all acts of the EU institutions without exception (see, to that effect, judgments of 13 December 1989, Grimaldi, C‐322/88, EU:C:1989:646, paragraph 8, and of 20 February 2018, Belgium v Commission, C‐16/16 P, EU:C:2018:79, paragraph 44). |
| --- | --- |

116

Thus, first, where, as in the present case, the Commission’s role is limited to making comments pursuant to Article 7(3) of the Framework Directive leading, in principle, to the adoption of a decision by the NRA concerned, a right of action is available before the relevant national courts. If necessary, the national courts may, in accordance with Article 267 TFEU, refer questions to the Court of Justice for a preliminary ruling concerning the EU regulatory framework applicable to a given situation. Even though Article 263 TFEU excludes the review, by the Court of Justice, of non-binding EU acts, Article 267 TFEU confers on the Court of Justice jurisdiction to deliver a preliminary ruling on the validity and interpretation of all acts of the EU institutions without exception (see, to that effect, judgments of 13 December 1989, Grimaldi, C‐322/88, EU:C:1989:646, paragraph 8, and of 20 February 2018, Belgium v Commission, C‐16/16 P, EU:C:2018:79, paragraph 44).

| 117 | Second, if the Commission exercises its right of veto under Article 7(5)(a) of the Framework Directive, the procedure does not lead to a national decision, but to the adoption of an EU act which produces binding legal effects and a right of action is then available, in such a case, before the EU Courts under Article 263 TFEU. |
| --- | --- |

117

Second, if the Commission exercises its right of veto under Article 7(5)(a) of the Framework Directive, the procedure does not lead to a national decision, but to the adoption of an EU act which produces binding legal effects and a right of action is then available, in such a case, before the EU Courts under Article 263 TFEU.

| 118 | In the third place, the fact that national courts attribute, in their assessment of the facts of a case, great importance to the comments made by the Commission under Article 7(3) of the Framework Directive is irrelevant. First, a finding made by a national court cannot lead to a measure adopted by an EU institution having binding legal effects if it does not have such effects under EU law. Second, in the event of a dispute relating to such comments between parties to proceedings before a national court, that court may refer questions to the Court of Justice for a preliminary ruling, as has been explained in paragraph 116 above. |
| --- | --- |

118

In the third place, the fact that national courts attribute, in their assessment of the facts of a case, great importance to the comments made by the Commission under Article 7(3) of the Framework Directive is irrelevant. First, a finding made by a national court cannot lead to a measure adopted by an EU institution having binding legal effects if it does not have such effects under EU law. Second, in the event of a dispute relating to such comments between parties to proceedings before a national court, that court may refer questions to the Court of Justice for a preliminary ruling, as has been explained in paragraph 116 above.

| 119 | In any event, it should be noted that, in the sole decision of a national court cited by the applicant in support of its argument, the reference to the Commission’s position is one ground among others, so that that court did not rely exclusively on any authority attributed to the Commission’s letter to the ACM pursuant to Article 7(3) of the Framework Directive. |
| --- | --- |

119

In any event, it should be noted that, in the sole decision of a national court cited by the applicant in support of its argument, the reference to the Commission’s position is one ground among others, so that that court did not rely exclusively on any authority attributed to the Commission’s letter to the ACM pursuant to Article 7(3) of the Framework Directive.

| 120 | As is clear from all the foregoing considerations, the contested measure, which does not produce any binding legal effects and is preparatory in nature, is not a measure which may be the subject of an action by the applicant before the EU Courts under Article 263 TFEU, for the purposes of challenging a failure to open the second phase of the European consultation procedure. |
| --- | --- |

120

As is clear from all the foregoing considerations, the contested measure, which does not produce any binding legal effects and is preparatory in nature, is not a measure which may be the subject of an action by the applicant before the EU Courts under Article 263 TFEU, for the purposes of challenging a failure to open the second phase of the European consultation procedure.

| 121 | Accordingly, the objection of inadmissibility raised by the Commission must be upheld and the present action declared inadmissible, without it being necessary to examine the second ground of inadmissibility, relating to the applicant’s standing to bring proceedings, or to rule on the applications for leave to intervene submitted by the Kingdom of the Netherlands or T-Mobile Netherlands Holding, T-Mobile Netherlands, T-Mobile Thuis and Tele2 Nederland. |
| --- | --- |

121

Accordingly, the objection of inadmissibility raised by the Commission must be upheld and the present action declared inadmissible, without it being necessary to examine the second ground of inadmissibility, relating to the applicant’s standing to bring proceedings, or to rule on the applications for leave to intervene submitted by the Kingdom of the Netherlands or T-Mobile Netherlands Holding, T-Mobile Netherlands, T-Mobile Thuis and Tele2 Nederland.

Costs

Costs

| 122 | Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Consequently, the applicant must bear its own costs and those of the Commission, in accordance with the form of order sought by the Commission, with the exception of those relating to the applications for leave to intervene. |
| --- | --- |

122

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Consequently, the applicant must bear its own costs and those of the Commission, in accordance with the form of order sought by the Commission, with the exception of those relating to the applications for leave to intervene.

| 123 | Under Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before the application for leave to intervene has been decided upon, the applicants for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. Consequently, the Kingdom of the Netherlands and T-Mobile Netherlands Holding, T-Mobile Netherlands, T-Mobile Thuis and Tele2 Nederland must bear their own costs relating to their respective applications for leave to intervene. In addition, the applicant and the Commission are each ordered to bear their own costs relating to those applications for leave to intervene. |
| --- | --- |

123

Under Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before the application for leave to intervene has been decided upon, the applicants for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. Consequently, the Kingdom of the Netherlands and T-Mobile Netherlands Holding, T-Mobile Netherlands, T-Mobile Thuis and Tele2 Nederland must bear their own costs relating to their respective applications for leave to intervene. In addition, the applicant and the Commission are each ordered to bear their own costs relating to those applications for leave to intervene.

| | On those grounds,
  THE GENERAL COURT (First Chamber),
  Hereby orders: |
| --- | --- |

On those grounds,

THE GENERAL COURT (First Chamber),

Hereby orders:

| | 1. | The action is dismissed as inadmissible. |
| --- | --- | --- |

1.

1.

The action is dismissed as inadmissible.

The action is dismissed as inadmissible.

| | 2. | There is no longer any need to rule on the applications for leave to intervene made by the Kingdom of the Netherlands or by T-Mobile Netherlands Holding BV, T-Mobile Netherlands BV, T-Mobile Thuis BV and Tele2 Nederland BV. |
| --- | --- | --- |

2.

2.

There is no longer any need to rule on the applications for leave to intervene made by the Kingdom of the Netherlands or by T-Mobile Netherlands Holding BV, T-Mobile Netherlands BV, T-Mobile Thuis BV and Tele2 Nederland BV.

There is no longer any need to rule on the applications for leave to intervene made by the Kingdom of the Netherlands or by T-Mobile Netherlands Holding BV, T-Mobile Netherlands BV, T-Mobile Thuis BV and Tele2 Nederland BV.

| | 3. | VodafoneZiggo Group BV shall bear its own costs and shall pay the costs incurred by the European Commission, with the exception of those relating to the applications for leave to intervene. |
| --- | --- | --- |

3.

3.

VodafoneZiggo Group BV shall bear its own costs and shall pay the costs incurred by the European Commission, with the exception of those relating to the applications for leave to intervene.

VodafoneZiggo Group BV shall bear its own costs and shall pay the costs incurred by the European Commission, with the exception of those relating to the applications for leave to intervene.

| | 4. | VodafoneZiggo Group, the Commission, the Kingdom of the Netherlands, T-Mobile Netherlands Holding, T-Mobile Netherlands, T-Mobile Thuis and Tele2 Nederland shall each bear their own costs relating to the applications for leave to intervene. |
| --- | --- | --- |

4.

4.

VodafoneZiggo Group, the Commission, the Kingdom of the Netherlands, T-Mobile Netherlands Holding, T-Mobile Netherlands, T-Mobile Thuis and Tele2 Nederland shall each bear their own costs relating to the applications for leave to intervene.

VodafoneZiggo Group, the Commission, the Kingdom of the Netherlands, T-Mobile Netherlands Holding, T-Mobile Netherlands, T-Mobile Thuis and Tele2 Nederland shall each bear their own costs relating to the applications for leave to intervene.

| | Luxembourg, 9 July 2019.


  E. Coulon
  Registrar


  I. Pelikánová
  President |
| --- | --- |

Luxembourg, 9 July 2019.

E. Coulon

Registrar

I. Pelikánová

President

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(
  *1
  )	Language of the case: English.

*1